Priest v. U.S. Sec. Assocs., Inc.

• Decision Date: 28 February 2014
• Docket Number: Case No. 5:11-cv-03938-HGD
• Parties: GEORGIA PRIEST, Plaintiff v. U.S. SECURITY ASSOCIATES, INC., Defendant
• Court: U.S. District Court — Northern District of Alabama

GEORGIA PRIEST, Plaintiff v. U.S. SECURITY ASSOCIATES, INC., Defendant

Case No. 5:11-cv-03938-HGD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ALABAMA NORTHEASTERN DIVISION

DONE: February 28, 2014

MEMORANDUM OPINION

The above-entitled civil action is before the Court on the Motion for Summary Judgment and the Motion to Strike filed by defendant U.S. Security Associates, Inc. (Docs. 30 & 37). This matter is before the undersigned U.S. Magistrate Judge based on the consent of the parties pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. U.S. Security Associates, Inc. (USSA) filed a Motion for Summary Judgment (Doc. 7), subsequently superceded by the Motion for Summary Judgment now before the Court (Doc. 30), both of which seek to have the case against it dismissed. Plaintiff has filed a response (Doc. 33), and USSA has filed a reply (Doc. 38). Plaintiff has filed a Response in Opposition to the Motion to Strike (Doc. 39) and furtherOpposition to the Motion for Summary Judgment (Doc. 42). The matter is now ready for disposition.

As an initial matter, the Motion to Strike is DENIED.¹ However, the Court recognizes that the subject matter of the Motion to Strike is of limited evidentiary value and its consideration by the Court is subject to this limitation as noted below.

STANDARD OF REVIEW

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a) (Dec. 2010). Rule 56(c) provides as follows:

(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits ordeclarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.

(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.

(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed.R.Civ.P. 56(c) (Dec. 2010). Defendant, as the party seeking summary judgment, bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). A genuine issue of material fact is shown when the nonmoving party produces evidence so that a reasonable factfinder could return a verdict in her favor. Greenberg v. BellSouthTelecomms., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007). If the nonmoving party fails to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof, the moving party is entitled to summary judgment. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. In reviewing whether the nonmoving party has met her burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in her favor. Tipton v. Bergrohr GMBH-Siegen, 965 F .2d 994, 998-99 (11th Cir. 1992) (internal citations and quotations omitted). However, speculation or conjecture cannot create a genuine issue of material fact. Cordoba v. Dillard's, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). Bare and self- serving allegations when the plaintiff has no personal knowledge are inadequate to carry the plaintiff's burden on summary judgment. See Stewart v. Booker T. Washington Ins., 232 F.3d 844, 851 (11th Cir. 2000) (plaintiff's claim of fact based upon "information and belief" about which she had no personal knowledge and for which there is no other supporting evidence presented is a bare and self-serving allegation that is insufficient to carry her burden on summary judgment). A "mere scintilla of evidence" in support of the nonmoving party also cannot overcome a motion for summary judgment. Young v. City of Palm Bay, 358 F.3d 859, 860 (11th Cir. 2004).

FACTUAL BACKGROUND

USSA is a national company that supplies security guards to a variety of companies in the United States. It is headquartered in Roswell, Georgia. In 2010, USSA was awarded the contract for security guard services at the International Paper Company facility (IP) in Courtland, Alabama. Its service under the contract was scheduled to begin on August 23, 2010. This contract required USSA to provide both security guard and emergency medical technician (EMT) services at the Courtland IP site.

Prior to USSA being awarded this contract, Weiser Security (Weiser) held the contract for security guard and EMT services at the IP facility. Plaintiff, who is African-American, worked for Weiser and its predecessors, Murray Guard and American Citadel, initially as a security guard for Murray Guard and as a security guard and, subsequently, as an EMT for American Citadel.

At the time that USSA was awarded the contract at the Courtland IP site, Gina Willis, nee Tucker, was Site Manager for Weiser. Gary Farris was a Lieutenant for Weiser during this time. All Weiser employees who wished to work for USSA had to apply for positions with USSA and pass background and credit checks. Willis and Farris were eventually hired by USSA and became USSA employees as of August 23, 2010. They remained Weiser employees until that date.

As part of the hiring process, USSA held several town-hall type meetings with the Weiser employees to inform them of USSA's hiring process, policies and procedures. USSA invited the Weiser employees to submit applications for employment but did not guarantee that all Weiser employees would be hired. Plaintiff attended at least one of these meetings and submitted an application for employment. To be considered for employment with USSA, employees of Weiser had to complete an application, be over 18 years of age, have a means to travel to and from work, and pass a drug and background check. (King Depo. at 37, 40).

In addition to the town hall meetings, USSA representatives attended several organizational meetings with the IP representatives to discuss the transition in security guard and EMT services from Weiser to USSA. Jack King attended several of these meetings on behalf of USSA. Following one of these meetings, which occurred before USSA took over the IP contract from Weiser, King was introduced to Jack Spillers, who was the head of IP's fire brigade. During a conversation with King, Spillers told King that there were two Weiser employees that USSA might want to take a close look at before hiring. The two employees identified by Spillers were plaintiff and Shelvey Parker, another EMT for Weiser. It is undisputed that King did not know the races of either Priest or Shelvey at the time he asked Willis about them or when he made the decision not to hire Priest. (King Affid. ¶ 8).

After his conversation with Spillers, King went to Willis' office and told Willis about his conversation with Spillers. Willis told King that Spillers and Parker had personal issues, i.e., that Spillers was "in love with Parker." Willis showed King incident reports and counseling forms regarding plaintiff. Although Willis signed off on all but two of these documents, these were given to plaintiff by a number of different supervisors throughout her employment with American Citadel and Weiser.

These documents reflected what King considered to be disciplinary notices and counseling sessions from April 2008 to March 2010, which reflected that plaintiff was counseled twice for failure to respond to pages; received four security complaints for her inability to get along with other employees and failure to respond to pages or report to work when paged; was issued two incident reports for failure to report to work when paged and another for poor attitude and failure to respond to pages or report to work when on-call; and received one coaching and counseling record because Weiser was unable to contact her by phone or pager. (King Affid. ¶ 7 and Ex. A).

Plaintiff asserted that there were problems with the paging system that kept her from receiving all of her pages. However, there is no evidence that King was aware that there were any problems with the paging system when he decided not to hire plaintiff. (King Depo. at 134). While plaintiff claims that she heard two otherCaucasian employees state that there had been occasions when they did not return pages, there is no evidence in the record that this was actually true or that Willis was aware of and failed to punish them for such conduct.

Plaintiff also states that Caucasian employee Delaine Haraway missed a significant amount of work. Records submitted corroborate this. However, a number of the absences are accounted for with doctor's excuses and several days were missed after the death of Haraway's son in an automobile accident. (Plaintiff's Ex. D). However, there is no record reflecting that Haraway failed to respond to pages. Likewise, there in no evidence that...